Trends in Pre-employment Screening - Controversies

Controversies

Drug tests and credit checks for employment are highly controversial practices. According to the Privacy Rights Clearinghouse, a project of the Utility Consumers' Action Network (UCAN): "While some people are not concerned about background investigations, others are uncomfortable with the idea of investigators poking around in their personal histories. In-depth checks could unearth information that is irrelevant, taken out of context, or just plain wrong. A further concern is that the report might include information that is illegal to use for hiring purposes or which comes from questionable sources."

In May 2002, allegedly improper post-hire checks conducted by Northwest Airlines were the subject of a civil lawsuit between Northwest and 10,000 of their mechanics.

In the case of an arrest that did not lead to a conviction, employment checks can continue including the arrest record for up to seven years, per § 605 of the Fair Credit Reporting Act:

Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing . . . Civil suits, civil judgments, and records of arrest that from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period.

Subsection (b) provides for an exception if the report is in connection with "the employment of any individual at an annual salary which equals, or which may reasonably be expected to equal $75,000, or more".

Some proposals for decreasing potential harm to innocent applicants include:

• Furnishing the applicant with a copy of the report before it is given to the employer, so that any inaccuracies can be addressed beforehand; and
• Allowing only conviction (not arrest) records to be reported.

In New Zealand, criminal checks have been affected by the Clean Slate Act 2004, which allows individuals to legally conceal "less serious" convictions from their records provided they had been conviction-free for at least seven years.

In Michigan, the system of criminal checks has been criticized in a recent case where a shooting suspect was able to pass an FBI check to purchase a shotgun although he had failed the check for a state handgun permit. According to the spokesman of the local police department,

... you could have a clear criminal history but still have contacts with law enforcement that would not rise to the level of an arrest or conviction to deny a permit whether or not those involved arrests that might show up on a criminal history.

The Brady Campaign to Prevent Gun Violence has criticized the federal policy, which denies constitutional rights based on a criminal check only if the subject has been accused of a crime.